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Under section 109(4) of the Equality Act 2010 an employer can rely on the 'reasonable steps' defence when defending a discrimination claim, resulting from the unlawful discriminatory actions of an employee (for which the employer would be vicariously liable), if it can demonstrate that it took reasonable steps to prevent those actions.
Allay (UK) Limited v Gehlen outlines the types of steps that a tribunal will consider if an employer seeks to rely on the 'reasonable steps' defence and confirms that employers face a high threshold to successfully establish this defence.
The claimant, Mr Gehlen, was employed by Allay (UK) Limited until his dismissal in September 2017 for performance-based reasons. Following his dismissal, the claimant raised a complaint that he had been subject to racial harassment by a colleague. Allay (UK) Limited investigated the complaint and the claimant's colleague was found to have made racist comments and was required to undertake further equality and diversity training.
The claimant subsequently brought a claim for race discrimination and harassment related to race. Allay (UK) Limited sought to rely on the 'reasonable steps' defence on the basis that they had required the claimant's colleague to undertake equality and diversity training to prevent the actions. Whilst accepting that Allay (UK) Limited had an equality and diversity policy and training in place which covered harassment related to race, the tribunal rejected the defence and held that the training was 'clearly stale' and ineffective as it had been provided in 2015 and Allay (UK) Limited had not provided refresher training. Further, steps had not been taken by relevant managers, who knew about the racial comments. The tribunal established that Allay (UK) Limited had not taken all reasonable steps to avoid discrimination in the workplace. The claimant's racial harassment claim was successful.
Allay (UK) Limited appealed the decision, which was dismissed on the basis that Allay (UK) Limited's training had become 'stale' and ineffective and that they should have taken further reasonable steps, such as refresher training.
Allay (UK) Ltd v Gehlen confirms that the tribunal will consider the steps taken by an employer in detail and that the threshold to establish that reasonable steps have been taken to prevent discrimination is high (this applies to all protected characteristics not just race). Simply providing training as part of an induction and informing employees which policies and procedures are in place will not suffice as this is not a tick box exercise.
The decision is a reminder to all employers that having an equality and diversity policy and providing generic training will not be not enough to establish a reasonable steps defence in discrimination claims.
In order to rely on the reasonable steps defence, employers will likely need to evidence that their equality and diversity training is up to date, comprehensive and that the training delivered to employees is tailored, relevant to the employee's role, has been provided recently and is being effectively applied in the workplace.
Employers must also remember that even if they take steps to ensure that their equality and diversity policy and training is kept up to date and relevant, whether they will be able to successfully rely on the reasonable steps defence will be a matter for the tribunal to consider and will depend on the circumstances of each case. The tribunal will consider how effective the steps taken were likely to be when they were taken and is also likely to consider how effective they proved to be in practice.
Employers should review their equality and diversity policy and training (as well as their other policies, procedures and training) regularly to ensure it's tailored to the employee's roles and fit for purpose. When reviewing their policies and training, employers may also want to use it as an opportunity to assess their vision and values as an organisation and what they are doing to promote diversity in the work place.
Employers should ensure that all employees understand the purpose of their equality and diversity policy and training. Employers should also consider providing additional training to managers, who will be required to set an example and mange complaints of potentially discriminatory treatment. It should also be clear from the policies and training to whom an employee can raise concerns.
Employers should also consider ways of effectively delivering training. For example, the use of case studies is an effective way of assisting to ensure that employees who have undertaken the training understand it and could recognise when to act. Refresher training should also be delivered to ensure that the training does not go 'stale'.
Foot Anstey regularly provide equality and diversity training which is tailored to the relevant organisation and frequently work with employers to update policies and procedures. Please contact us to find out how we can assist you.
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